J

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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS JAMES KOLLIAS

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1463 MDA 2018 Appeal from the Judgment of Sentence Entered August 3, 2018 In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP

- 06

- CR

- 0002330

- 2003

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.: FILED SE PTEMBER 13, 2019
Appellant, Thomas James Kollias, appeals from the judgment of
sentence entered on August 3, 2018. We affirm

. On August 18, 2003, Appellant pleaded guilty to receiving stolen
property and criminal attempt to commit criminal tres pass. 1 Th at day, the
trial court sentenced Ap pellant to serve a term of one to two years in prison
for the receiving stolen property conviction, followed by a term of five years
of probation for the attempted criminal trespass conviction.
On April 1, 201 0, April 16, 2013, and December 1, 2016, the trial court
revoked Appellant’s probation and, each time, the trial court resentenced
Appellant to serve a term of probation for the underlying attempted criminal
trespass conviction

. See Probation Order, 4/1/10, at 1 (sentencing Appellant

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. § § 3925(a) and 901 (a) , respectively

.J

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to serve seven years of probation) ; Special Probation Order, 4/16/13, at 1
(sentencing Appellant to serve seven years of probation) ; Probation Order,
12/1/16, at 1 (sentencing Appellant to serve a term o f four years of
probation).

On July 3, 2018, while Appellant was still on probation, the Court of
Common Pleas of Delaware County sentenced Appellant to serve a term of
four to 23 months in jail for a simple assault conviction

. See N.T. Revocation
Hearing , 8/3/18, at 2. As a result of Appellant’s arrest and conviction, the
Commonwealth began revocation of probation proceedings against Appellant

. During the August 3, 2018 violation of probation hearing, Appellant
stipulat ed to violating his probation and the trial court resentenced Appellant
to serve a term of 20 months to five years in prison for the underlying
attempted criminal trespass conviction

. Id. at 11.

On August 8, 2018, Appellant filed a timely motion to modify sentence.
In relevant part, Appellant’s motion to modify sentence declared:

6. [At the sentencing hearing ,] the Adult Probation Office
reco mmended [that the trial court sentence Appellant to
serve ] two to seven years in [a State Correctional Institution (“SCI”) ] , with time credit of 405 days.

7. [ Appellant] requested a county sentence, with 405 days credit, followed by probation as the [trial] court deemed appropriate.
8. [The trial] court then sentenced [Appellant] to a term of imprisonment of 20 months to [five] years SCI, with 4 05 days credit. . . .J

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- 9. [Appellant] is requesting probation to follow the probation that he already will be serving in Delaware [County], or in the alternative, a county sentence followed by probation.

. . . 11. [ Appellant ] requests that the [trial] c ourt consider the following factors in regard to sentencing:
a. [Appellant] will be on supervision for an extended amount of time in Delaware County due to the sentence on the new charges, and the . . . [sentences at other docket numbers].
b. [Appellant] has significant mental health issues that require treatment and medication and if [Appellant] is sent to state prison, he will likely decompensate and not receive the treatment that he would be able to obtain on county supervision.
c. [Appellant] is requ ired to enroll in treatment within 10 days of release from Delaware County and will also have drug and alcohol, psychological and psychiatric evaluations as part of his Delaware County supervision.

WHEREFORE, [ Appellant ] prays that [the trial court] consi der his petition requesting a modification of the sentence imposed upon him, and that [the trial court ] reduce and modify the sentence imposed upon him. Appellant’s Motion to Modify Sentence, 8/8/18, at 2

- 3 ( emphasis and some
capitalization omitted).

On Au gust 27, 2018, the trial court denied Appellant’s motion to modify
sentence. Trial Court Order, 8/27/18, at 1. Appellant filed a timely notice of
appeal on August 31, 2018 . Appellant raises the following claims in his brief:

A. Appellant’s re

- sentence of [20] months to [five years’] incarceration was a manifest abuse of discretion due to the overall excessiveness of his sentence from a 2003 conviction.J

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- 1. The trial court failed to comply with 42 Pa.C.S.A. § 9771(b) when imposing sentence.
2. Using the factors in 42 Pa.C.S.A. § 9781(d), [the Superior] Court should vacate the sentence because the specific circumstances make this sentence manifestly unreasonable.

a. Under 42 Pa.C.S.A. § 9781(d)(1), the circumstances of the case and Appellant’s history of severe mental illnesses merit considerable weight in overturning his sentence.

b. The [trial] court’s findings pursuant to 42 Pa.C.S.A. § 9781(d)(3) were insufficient to justify the sentence imposed.
3. Appellant’s re

- sentence was disproportional and contrary to fundamental sentencing norms.
4. Appellant asks this [Court] to consider the controversy surrounding perpetual probation as a factor in finding abuse of discretion. Appellant’ s Brief at i

- ii (emphasis omitted)

. Appellant’s claims challenge the discretionary aspects of his sentence.

See Commonwealth v. Lee , 876 A.2d 408 (Pa. Super. 2005) (claim that the
trial court erred in imposing an excessive sentence is a challenge to the
discretionary aspects of a sentence). We note that, in an appeal fol lowing the
revocation of probation, our scope of review includes discretionary aspects of
sentencing claims. Commonwealth v. Cartrette , 83 A.3d 1030, 1042 (Pa.
Super. 2013) ( en banc ). With respect to our standard of review, we have held

that “sentencing is a matter vested in the sound discretion of the sentencing
judge, whose judgment will not be disturbed absent an abuse of discretion.”
Commonwealth v. Ritchey , 779 A.2d 1183, 1185 (Pa. Super. 2001).J

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Moreover, pursuant to statute, Appellant does not hav e an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
As this Court has explained:

[t]o reach the merits of a discretionary sentencing issue, we conduct a four

- part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. [708(E)]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa .C.S. § 9781(b).

Commonwealth v. Cook , 941 A.2d 7, 11 (Pa. Super. 2007); see also

Cartrette , 83 A.3d at 1042 (“ issues challenging the discretionary aspects of
a sentence [following the revocation of prob ation] must be raised in a

post

- sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived”); Commonwealth v. Kalichak , 943 A.2d
285, 289 (Pa. Super. 2008) (“when a court revokes probati on and imposes a
new sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by objecting during the
revocation sentencing or by filing a [motion to modify] sentence”).J

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The claims Appellant advances in his brief were not raised at the
resentencing hearing or in Appellant’s motion to modify his sentence. 2 See

N.T. Revocation Hearing, 8/3 /18, at 1 1

- 12 ; Appellant’s Motion to Modify
Sentence, 8/8/18, at 1

- 3; N.T. Motion to Modify Sentence Hearin g, 8/27/18,

at 1

- 5; Pa.R.Crim.P. 708(E). Therefore, Appellant waived the discretionary
aspects of sentencing claim s he currently raises on appeal

. Cartrette , 83

A.3d at 1042.
Moreover, even if Appellant had properly preserved his cu rrent claims
(which he did not), the claims would fail. Since Appellant was sentenced
following the revocation of probation, the sentencing guidelines do not apply
to Appellant's sentence. 204 Pa.Code § 303.1(b); Commonwealth v.

Ferguson , 893 A.2d 735, 739 (Pa. Super. 2006). Nevertheless, in sentencing
Appellant, the trial court was required to “consider the general principles and

_________________ __________ ______ ____ _______

2 We note that, in both Appellant’s brief and motion to modify sentence , Appellant premised a claim for relief upon his “significant mental health issues.” However, the claims are materially distinct. Specifically, in Appellant’s brief, Appellant argued that his sentence i s manifestly excessive (in part) because his “mental health condition[s] clearly inhibit his ability to adhere to probation conditions ” and his recidivism “indicate[s] a legitimate mental disability that is beyond Appellant’s ability to change or control.” Appellant’s Brief at 23

- 24

. Appellant did not raise this mens rea claim in his motion to modify sentence. Rather , within Appellant’s motion to modify sentence, Appellant argued only that his mental health issues favored probation because his mental hea lth issues “ require treatment and medication and if [Appellant] is sent to state prison, he will likely decompensate and not receive the treatment that he would be able to obtain on county supervision

. ” Appellant’s Motion to Modify Sent ence, 8/8/18, at 2. Therefore, the claim raised in Appellant’s motion to modify sentence did not preserve the claim Appellant raise d in his brief to this Court.J

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standards of the Sentencing Code.” Commonwealth v. Russell , 460 A.2d
316, 322 (Pa. Super. 1983). Section 9721 expresses these general principles
in the following manner:

the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b)

. Further, as we have held:

I n addition to issuing a sentence that is “consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabil itative needs of the defendant ,” a [violation of probation (“VOP”) ] court must also consider, for example, whether the sentence imposed is “essential to vindicate the authority of the court,” and must give “due consideration

. .

. to the time spent serving the order of probation

. ”
Commonwealth v. Derry , 150 A.3d 987, 994 (Pa. Super. 2016) (corrections
omitted) , quoting 42 Pa.C.S.A. § § 9721(b) and 9771

. “The determination of whether a particular case raises a substantial
question is to be evaluated on a case

- by

- case basis. Generally, however, in

order to establish that ther e is a substantial question, the appellant must show
actions by the sentencing court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing process.”

Commonwealth v. Marts , 889 A.2d 608, 612 (Pa. Super. 2005) (internal
citations omitted). “ When considering the merits of a discretionary aspects of
sentencing claim, we analyze the sentencing court's decision under an abuseJ

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of discretion standard. ” Commonw ealth v. Zeigler , 112 A.3d 656, 661 (Pa.
Super. 2015)

. “ An abuse of discretion is more than just an error of judgment
and, on appeal, a trial court will not be found to have abused its discretion

un less the record discloses that the judgment exercised is manifestly
unreasonable, or the result of partiality , pre judice, bias, or ill

- will. ”

Commonwealth v. Lane , 424 A.2d 1325, 1328 (Pa. 1981) (quotations
omitted).
Appellant claims : 1) “the new sentence was manifestly unreasonable
considering the circumstances of this case,” as the trial court failed to give
adequate weight to Appellant’s “severe mental health issues ; ” 2) the trial
court “failed to consider 42 Pa.C.S.A. § 9771(b) when imposing total
confinement,” in that the trial court failed to give “due consideration . . . to

the time [Appellant] spen t serving the order of probation ; ” 3 ) the “re

- sentence
violates the general sentencing principles in 42 Pa.C.S.A. § 9721 (b) because
it was disproportional to the violations ; ” and, 4 ) the trial court’s “findings
pursuant to 42 Pa.C.S.A. § 9781(d)(3) were in sufficient to justify the sentence
imposed

. ” 3 See Appellant’s Brief at 15

- 31.

_________________ __________ ______ ____ _______

3 Appellant’s final numbered sub

- claim

– requesting that this Court “consider the controversy surrounding perpet ual probation as a factor in finding abuse of discretion”

– reiterates his claim that the trial court “failed to consider 42 Pa.C.S.A. § 9771(b) when imposing total confinement,” in that the trial court failed to give “due consideration . . . to the time [Appellant] spent serving the order of probation

. ” See Appellant’s Brief at 30.J

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Even if the claims were preserved and presented substantial question s

for our review, the claims would fail. We will consider the first three numbered
claims together.

First, at sentencing, the trial court was well aware of

– and thoroughly

considered

– Appellant’s mental health issues and the time Appellant spent
serving the prior orders of probation

. See N.T. Sentencing, 8/3/18, at 5

- 6
(Appellant’s attorney informed the trial court of Appellant’s mental health
problems); N.T. Sentencing, 8/3/18, at 3

- 4 ( the Commonwealth noted
Appellant’s prior time serving probation); c.f. Commonwealth v. Rhoades , 8 A.3d 912, 919 (Pa. Super. 2010 ) (hold ing that, when “the sentencing court

had the benefit of a pre

- sentence investigation report, we can assume the
sentencing court was aware of relevant information regarding the defendant's

character and weighed those considerations ”). Further, the trial court
meticulously weigh ed the facts and considered the necessary statutory factors
when it sentenced Appellant to serve a term of 20 months to five years in
prison. As the trial court explained:

Considering the procedural history, the recommen dation of both Commonwealth and [Appellant] , the allocution of [Appellant] and his background, as well as balancing the punitive needs of the Commonwealth with the rehabilitative needs of [Appellant] and his inability to succeed with the lesser restriction s of probation, the sentence imposed is not manifestly excessive nor grossly disproportionate to the crime and is supported by the record. It should [] be noted that the sentence imposed was a lesser minimum sentence than requested by the supervising prob ation officer. The sentence was also imposed concurrently with [Appellant’s]J

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- new Delaware County conviction in light of the court's concern with the potential issue of aggregation of sentences.
The court is permitted to revoke an order of probation upon proof of the violation of specified conditions and has available all the sentencing alternatives that existed at the time of initial sentencing. Wh ile due consideration should be given to the time spent serving the order of probation, it is one of many factors to consider. Although not required, the court considered the traditional sentencing factors, including the likelihood that probation with its lesser restrictions could

r ehabilitate [Appellant]. 42 Pa.C.S.A. § 9771(c) permits total confinement upon probation revocation. It lists three factors that indicate the appropriateness of incarceration. The existence of any one of them shows the appropriateness of the type of sentence imposed on [Appellant]

. In this c ase, all the listed factors existed on some level for him, weighing in favor of total confinement. First, [Appellant] was convicted of a new crime. Second, the conduct of [Appellant] over the time since August of 2003 shows that it is likely that he will commit another crime if he is not imprisoned, having three new convictions in addition to technical violations. [Appellant] himself stated that he wasn't sure he could ever finish a term of probation. Third, total incarceration is appropriate when such a sentence is essential to vindicate the authority of the court. [Appellant] was given four opportunities to comply with a probationary sentence before incarceration was imposed. He was given repeated opportunities to comply and was unable to comply with the conditions of probation, most importantly to remain crime free. To impose another term of probation would undermine the authority of the court. [At sentencing, the] trial court noted, “ I have cut you some amazing breaks already with regard to this doc ket. And nevertheless, you have kept getting into difficulties, so I don't see any choice but to in fact impose a state sentence this time around. ”

The trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. This is the basis for the broad discretion afforded to trial court judges. When considering the nature and circumstances of the offense and the history and characteristics of [Appellant] and t he multiple opportunities the sentencing cou rt had to observe [him],J

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- there is no basis to conclude there was an abuse of discretion. The sentence entered in this case is not manifestly excessive nor grossly disproportionate to the actions of [Appellant]

. Sufficient reasons for the imposition of the sentence were placed on the record. The court's exercise of judgment was not manifestly unreasonable when contrasted to the facts, the guidelines, and the history of violations by [Appellant]

. The age of the o riginal docket or the probation previously imposed were not ignored in this case. [Appellant’s] allocution was carefully considered. [Appellant] indicated his belief that he could never complete a term of probation; indicating that probation would essenti ally be setting him up for additional failure. A sentence of incarceration was appropriate. Trial Court Opinion, 7/5/19, at 4

- 6 (some citations omitted)

. The trial court’s careful analysis demonstrates that it carefully weighed
the totality of the facts an d the necessary statutory factors prior to imposing

sentence. The sentence the trial court imposed was not “manifestly

unreasonable”

– and it certainly cannot be said that the sentence was “ the
result of partiality, prejudice, bias or ill

- will .” See Lane , 424 A.2d at 1328.
As such, the trial court did not abuse its discretion when it sentenced Appellant
to serve a term of 20 months to five years in prison.
Finally, Appellant claims that the trial court abused its discretion when
it provided a “terse” a nd “insufficient” reason for his sentence during the
sentencing hearing. See Appellant’s Brief at 25

- 26 . This claim fails.
During the sentencing hearing, the trial court declared:

I had the sheet that had the docket for the Delaware County [conviction]. . . . The sentence in this matter takes into consideration all of the information provided, as well as the history of this charge. [Appellant,] there [are] two problems that I have. One would be the problem of aggregation if I gave you eve n a county sentence, it would probablyJ

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- aggregate into a state sentence. The second is I have cut you some amazing breaks already with regard to this docket. And[,] nevertheless, you have kept getting into difficulties so I don’t see any choice but to in fact impose a state sentence this time around.
Sentence will be based upon the violations of the prior probation and the history. The sentence is that you shall be committed for a period of not less than 20 months, no more than five years to the Bureau o f Corrections for confinement in a state correctional facility. . . . This sentence will be effective today, and will be concurrent with the sentence imposed at [the Delaware County docket].
N.T. Sentencing Hearing, 8/3/18, at 11.
As our Supreme Court expl ained:

At initial sentencing, all of the rules and procedures designed to inform the court and to cabin its discretionary sentencing authority properly are involved and play a crucial role. However, it is a different matter when a defendant reappears bef ore the court for sentencing proceedings following a violation of the mercy bestowed upon him in the form of a probationary sentence.

. . . 42 Pa.C.S. § 9721(b) specifies that in every case following the revocation of probation, “the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” Se e also Pa.R.Crim.P. 708(C)(2) (indicating at the time of sentence following the revocation of probation, “[t]he judge shall state on the record the reasons for the sentence imposed.”).
However, following revocation, a sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statutes in question. Simply put, since the defendant has previously appeared before the sentencing court, the stated reasons for a revocation sentence need not be as elaborate as that which is required at initialJ

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- sentencing

. The rationale for this is obvious. When sentencing is a consequence of the revocation of probation, the trial judge is already fully informed as to the facts and circumstances of both the crime and the nature of the defendant, particularly where, as here, the trial judge had the benefit of a PSI during the initial sentencing proceedings.

Commonwealth v. Pasture , 107 A.3d 21, 27

- 28 (Pa. 2014) (emphasis
added) (footnote omitted).

It is true that , d uring Appellant’s sentencing hearing, the trial court’s

record statement for imposing the sentence was not as detailed and elaborate
as it might have been for an initial sentence. However, under our Supreme
Court’s precedent, it did not need to be. Id. Here, the trial court complied

with 42 Pa.C.S.A. § 9721(b) by placing “a statement of the reason or reasons
for the sentence imposed ” on the record. See 42 Pa.C.S.A. § 9721(b);

Pasture , 107 A.3d at 27

- 28. Appellant’s claim that the statement was “terse”

or “insufficient” fails under our Supreme Court’s holding in Pasture

.
We thus conclude that , even if App ellant had not waived his claims on
appeal , the claims would have failed

. Judgment of sentence affirmed

.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/13/2019